Moving on from Copyleft

I'm no longer using CC's Attribution ShareAlike for my photos, and have switched to requiring just Attribution when my photos are used. This post will hopefully explain why I switched, and present some ideas and critiques about copyleft with respect to photography.

When I first started my photoblog, in late February of 2005, I was releasing my images under Creative Commons Attribution-NonCommercial so that you could use my photos so long as you gave me attribution and didn't use them commercially:

Anyway, Attribution-ShareAlike, Creative Commons' copyleft license, was the recommended solution to achieving some of the goals that people thought they wanted with CC's NonCommercial license. Afraid that someone is going resell remixes of your work? If they have to release those remixes under the same license in which you gave it to them (put simply, the principle of ShareAlike and copyleft), then they'll have no financial incentive to sell it, because the license will allow sharing and future commercial exploitation by the public. This, the reasoning goes, should make authors feel better about their work being commercially resold if and when that were to happen.

Many of my photos have been used by mainstream publications without my permission (that's a good thing as far as I'm concerned) because I've put them under a Creative Commons license.

Up until today, I had had most of my photos licensed under this license, and found wonderful uses of them by places like Popular Science, the Wall Street Journal, and of course, Wikipedia. It has since become very clear to me that there is a continuum, and that the more liberally you release a work, the better it can flow into the world.

It is for this reason and the ones below, that I am now removing the "copyleft" requirement of my photos. That is, I am removing the ShareAlike condition on my work, and releasing them under purely Attribution. This means you can mash up my photos, remix them, use them commercially, and do basically whatever you want, with absolutely no obligation above giving me proper attribution and stating that the original was released under a CC Attribution license.

Here are some more thoughts on why copyleft and photography aren't a great fit:

Copyleft is difficult to explain for most people unfamiliar with software, much less licensing, and it imposes a further transaction cost on people using my work. When I'm negotiating with people who hire me to take photos for events or portraits, the basic notion of attribution is very easy to explain. However, copyleft takes precious time and negotiating energy to further explain. Since I'd rather have my work used than not, most of the time I just waive ShareAlike anyway. This is the standard complaint levied against copyleft in the decades-old war between permissive licenses and copyleft licenses. Google, for example, chose the permissive Apache license (basically the software equivalent to CC's Attribution license) for their Android platform because it not only allows the codebase to be open source / free software, but because it encourages other companies to adopt it without further complications to their work flow and software stacks.

Similarly, most people ignore copyleft when they don't understand it. I'm torn about whether this should be a distinct point from the one above, but I think there's a difference between the cost of explaining copyleft, and the cost of using copylefted work. I have found numerous examples of when people use my images, and either don't want to pay attention to the ShareAlike condition, so they just ignore it, or they don't understand it in the first place. Besides having to explain copyleft, this forces me to punish the reuser with more work, something I'm not comfortable with doing when I should be the one that is thankful that someone else is reusing my photos.

The legal ground for what constitutes a "derivative" of a photographic work is less than clear. Therefore, it is unclear when parent works must be released under the ShareAlike license when they use my photo. For example, if someone takes my photo from Flickr (which was under a BY-SA license) and uses it in a mainstream newspaper, are they obligated to release the article that uses the photo under BY-SA or the newspaper or neither? The license states that derivatives must be licensed and shared in the same way, but there is a split circuit decision on whether a derivative is created by re-contextualizing a photo. Wikipedia has a "Reusing Content from Wikipedia" page that basically dodges the question.

More importantly, its not just the courts who are split on this decision. Some people believe that copylefted material should not place an undue burden on mainstream press when using photos, and others believe that the press shouldn't be allowed to use work without giving up something a little themselves, namely the exclusive rights monopoly over the encompassing work.

Needless to say, this is a frustrating fact of copyleft for photography that blurs the lines in a way similar to the NonCommercial issue. Deciding "What is a derivative?" looks, in some cases, as challenging as deciding "What is NonCommercial?"

Copyleft for photos doesn't make as much sense as it does for software. Richard Stallman's idea behind copyleft was to not only protect his work from becoming proprietary (and therefore locking him out of his own work), but to encourage people who built upon it to release those modifications back into the community. Building upon the work of others in photography does not require access to the source, even if you make the crass analogy that negatives (or RAW files) are the photography equivalent of source code, because all you need to learn and build upon photography is visual access to the final works. When I as a photographer, build upon the work of Diane Arbus or Andreas Gursky, my community does not need to have access to my negatives or RAW files to benefit from the changes I made based on an original photographer's work, all they need is visual access to my end result. And I don't buy the argument that access to my negatives or RAW files is just as valuable as access to a software application's source code, because the negatives and RAW files are essentially unedited and unprocessed. I also don't buy the argument that compiling a program is like exposing a negative. Where a compiled application fundamentally obscures the underlying source, an exposed negative only partially edits the underlying source -- you can still learn from the photo and build upon it, and even arguably share it.

4 comments

I've been wondering about the of vague wording behind share-alike. If I place a song that's licensed share-alike in one of my movies, do I have to license my entire film - the dialogue, the images, the audio - under a share-alike license? I'm not exactly modifying the song, I'm just re-contextualizing it as you say. But I am building upon the work. So would the entire film be licensed share-alike, or is the license carried over solely for the song in the film?

Things are actually a lot clearer in terms of using music that is copylefted in videos -- by 'synching' a song with a moving picture you're making a derivative of a song, so yes, the video would have to be under the same license. The music industry (song writers in particular) battled long and hard for this in the 1976 statute. Read more about this here:

Fred,
Thanks for sharing your reasoning behind dropping the SA requirement. I've written elsewhere about my problems with Share Alike, and I've been frustrated by the copyleftists' dominant voice in many conversations about Creative Commons. It's nice to hear from someone else for whom SA is not the solution.

Also, just to clarify a bit in response to Gabe's question: My understanding is that under the legal definition of a "derivative work" a video that includes a song does not qualify. However, the legal language of the CC-SA and CC-ND licenses explicitly defines a video that uses a song as an "adaptation" that must be licensed under SA, which skirts the issue of whether or not such a thing is technically a derivative work.